UNHRC Periodic Report On Sri Lanka Wants Executive Power Clipped – Analysis

It decries curbing of the right to protest and the lack of progress in ensuring Tamils’ and Muslim women’s rights.  

In its concluding observations at the sixth periodic review of the human rights situation in Sri Lanka, the Human Rights Committee (HRC) stressed the need for constitutional reforms to check the over-riding powers of the Executive over independent institutions. 

It also decried the curbs imposed on the right to protest and the lack of progress in securing the rights of the minorities.  

On the plus side, the HRC welcomed the adoption of the following legislative and policy measures: (a) the Office on Missing Persons Act No. 14 of 2016; (b) the Local Authorities Elections (Amendments) Act No. 16 of 2017;  (c)     the Assistance to and Protection of Victims of Crime and Witnesses (Amendment) Act No. 27 of 2017; (d) the Office for Reparations Act No. 34 of 2018; (e) the adoption of the International Convention for the Protection of All Persons from Enforced Disappearance Act No. 5 of 2018; and (f) the Land Development (Amendment) Act No. 11 of 2022.  

The HRC also welcomed the ratification of, or accession to, the following international instruments: (a) the International Convention for the Protection of All Persons from Enforced Disappearance, in 2016; the Convention on the Rights of Persons with Disabilities, in 2016; the Optional Protocol to the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, in 2017.

Separation of Powers

The HRC asked the Lankan government to expedite and finalize its constitutional reform process with a view to ensuring that the Separation of Powers and institutional checks and balances between the executive and oversight institutions (the independent commissions and the judiciary), entrusted with protecting human rights, are fully respected and are not subject to arbitrary removal by future amendments.

It wanted the government to safeguard, in law and in practice, the full independence and impartiality of members of the Constitutional Council, and other officials responsible for upholding the rule of law and human rights, including by ensuring that their appointments are in compliance with relevant international standards.

It asked the government to provide judicial review mechanisms for the constitutionality of both draft and enacted legislation.

HRCSL Reduced to B Class 

The HRC noted the inadequacies of the Human Rights Commission of Sri Lanka (HRCSL). It said: “While noting the adoption of the twenty-first amendment made to the Constitution aiming to restore the independence and effectiveness of the HRCL, the HRC regrets that the Global Alliance of National Human Rights Institutions downgraded the Commission to a “B” status because of, among others, the lack of transparency in the appointment process and of pluralism in its membership and staff.

The HRC said that is deeply concerned about the extreme delay in bringing to justice perpetrators of past human rights violations that occurred during the conflict. It regretted that domestic legislation has not criminalized war crimes, crimes against humanity, and genocide.

Slams Army Court of Inquiry 

It expressed concern that, despite credible evidence of war crimes, the Army Court of Inquiry (ACI) found no civilian casualties caused by army operations between 2006 and 2009 and that allegations of systematic use of torture and sexual violence at the Joseph Camp in Vavuniya remained unaddressed.

The HRC expressed concern about reports of interference in and obstruction of judicial and investigative processes by politicians and members of security forces. It was particularly concerned about the recommendations made by the Commission of Inquiry to Investigate Allegations of Political Victimization which led to the withdrawal of charges in many emblematic cases, including the abduction of eleven Tamil individuals by Navy officials in 2008 and 2009 and the killings of Tamil Members of Parliament Nadaraja Raviraj and Joseph Pararajasingham. 

It was concerned about the continued appointment and promotion of military personnel, accused of war crimes during the conflict, which fosters a climate of impunity.  

While noting the amendment made to the Assistance to and Protection of Victims of Crime and Witnesses Act of 2015, the HRC remained concerned that victims, their relatives and witnesses were not provided effective protection and continue to face threats, intimidation and harassment.

Missing Persons

The HRC noted the establishment and operation of the Office for Reparations and the Office of Missing Persons, but expressed concern over the lack of progress in clarifications of the whereabouts and fate of persons subjected to enforced disappearances and of the appointment to these bodies of individuals implicated in the past human rights violations and interference in prosecutions of such cases, which would deter victims and their relatives from seeking justice. 

While noting the government’s information that former combatants are eligible for reparations pursuant to the Office for Reparations Act No. 34 of 2018 and are included in social services schemes, the HRC regretted reports that they lacked adequate access to such information and other services, including medical care.

Declarations of Emergency  

In light of the Lankan government’s frequent declaration of States of Emergency, the HRC expressed concern that the Security Ordinance No. 25 of 1947 allows the emergency regulations to override any law, except the Constitution, that its Section 8 prevents any declaration from being challenged in court and that Sections 9 and 23 guarantee immunity for officials acting in “good faith”. 

The HRC was concerned that serious human rights violations, including deaths, injuries, arbitrary arrests and detention of protestors and blanket bans on social media, had occurred during the States of Emergency following the Easter Sunday bombings in April 2019 and during the mass protests from April to May 2022. The government should also ensure that the measures are strictly required by and proportional to the exigencies of the situation and are limited in duration, geographical coverage and material scope. 

Additionally, the HRC said that “if the State party avails itself of the right of derogation, it shall immediately inform other States parties to the Covenant, through the intermediary of the United Nations Secretary-General.” 

Counter-Terrorism   

While noting the amendment made in 2022 to the Prevention of Terrorism Act, the HRC remained concerned that the Act continues to permit prolonged pretrial detention, up to 12 months, without charge. The definition of terrorism is a broad, and is used to legitimize the targeting of minorities, particularly Muslims and Tamils, government critics “and lesbian, gay, bisexual and transgender individuals”, and to extract confessions through torture. It was also concerned about reports of deaths in custody of individuals detained under the Act. 

The HRC urged the government to repeal the Prevention of Terrorism Act and replace it with legislation that narrows the definition of terrorism and is compatible with principles of legal certainty, predictability and proportionality. It wanted the legislative process for enacting a new anti-terrorism or national security law to be inclusive and transparent. A wide range of stakeholders, including the Human Rights Commission of Sri Lanka, civil society and the public should be consulted.

Personal Laws and Women’s Rights

The HRC wanted the government to repeal and amend discriminatory provisions in personal laws, including the Muslim Marriage and Divorce Act and the Jaffna Matrimonial Rights and Inheritance Ordinance. 

Full and equal participation of women in political and public life, including in executive, judicial and legislative bodies at the national and provincial levels, particularly in decision-making positions, should be ensured by means of temporary special measures, such as the establishment of quotas. 

Death penalty 

While noting Sri Lanka’s long-standing moratorium on the death penalty, the HRC  was concerned about the continued and frequent use of the death penalty. It is further concerned that the death penalty remained mandatory for certain crimes, that offences that do not meet the threshold of the “most serious crimes” are subject to the death penalty.

Detention Laws  

The HRC wanted all allegations of arbitrary arrests and detention, particularly of government critics, protestors, trade unionists and members of minority groups, are promptly, effectively and independently investigated, and those responsible are brought to justice and victims are provided with full reparations

On the issue of pre-trial detention, the HRC said that it should be used only as an exceptional measure and for a limited period of time, that the use of alternative measures to pretrial detention, as provided for in the United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules), be followed. 

The government should take all measures necessary to ensure the full independence and impartiality of the judiciary and the public prosecution and guarantee that they are free to operate without any type of undue pressure or interference from the executive and legislative branches, the HRC said.

Tamils’ Issues

The HRC asked the government to (a) give back private lands held by the military to their legitimate civilian owners; (b)    cease military land grabbing and land annexation, especially Tamil lands, with a view to preventing forced resettlement of the Tamil community, and (c) provide full reparations to members of the affected community.  

The State should reduce military presence in the Northern and Eastern provinces with a view to minimizing their adverse impact on the livelihoods of internally displaced persons and returnees. 

Buddhism’s Primary Place 

While noting that the Sri Lanka constitution recognizes Buddhism, Islam, Hinduism and Christianity, the HRC noted with concern that Buddhism continues to be granted “the foremost place” under its Article 9. 

It was concerned about continuing ethno-religious hostility targeting religious minority groups and of persisting discrimination, violence, hate speech and misinformation, on and offline, and incitement to hatred and violence against them. It was also concerned about reports of discrimination and attacks against places of worship of religious minorities.

Freedom of Expression  

The HRC was concerned about reports of severe restrictions on freedom of opinion and expression in the State party, such as: 

(a) harassment, intimidation, surveillance, disappearances and killings of journalists, human rights activists and other media workers with impunity, including the disappearance of the journalist and activist Prageeth Ekneligoda in 2010, the murder of the journalist Lasantha Wickrematunge in 2009 and the killings of 17 employees of the nongovernmental organization Action against Hunger in 2006; 

(b) the misuse of the International Covenant on Civil and Political Rights Act No. 56 of 2007 to stifle freedom of expression, as well as the failure of the authorities to grant bail in a timely manner to individuals charged under the Act. 

(c) the blocking of public access to social media platforms ahead of and amid anti-government protests in 2022 as well as possible restrictions on freedom of expression online through the proposal, approved by the Cabinet of Ministers in April 2021, to draft legislation on false and misleading statements on the internet.